EEOC

Does the EEOC Need to Re-Focus?

A hearing was held on May 23rd by the House Education and the Workforce Subcommittee on Workforce Protections to discuss the “need for more responsible regulatory & enforcement policies” by the EEOC (Equal Employment Opportunity Commission). The EEOC is a government agency which investigates charges of workplace discrimination and works to uphold civil rights laws. However, many are criticizing the operations of the agency for various reasons.

Subcommittee Chairman Bradley Byrne (R-AL) expressed concern at the hearing over the EEOC’s “flawed enforcement efforts under the Obama administration.” He stated, “At the end of 2016, the EEOC had more than 73,000 unresolved cases,” a statistic which he called, “unacceptable”.

Rae Vann, Vice President and General Counsel for the Equal Employment Advisory Council disagreed with the EEOC’s “self-imposed pressure to ‘fish’ for large, class based claims”. She states their strategy is based on “the assumption that widespread workplace discrimination is present in every district and region – and at every company – across the country.” To address the problem, she believes “Rather than focusing on increasing its systematic litigation docket, the EEOC should do more on the front end to ensure that all discrimination charges it receives are properly categorized, investigated, and resolved.”

However, this does not mean that all in attendance were in agreement. Todd A. Cox, Director of Policy NAACP Legal Defense and Education Fund, Inc. disagreed with Vann’s position. He states, “Our country cannot hope to rid the workplace of employment discrimination on an individual case-by-case basis. Moreover, many of these cases would never be prosecuted by the private bar or civil rights organizations with limited resources, especially when the discrimination is occurring in underserved communities or the likelihood of obtaining significant monetary relief is minimal. An emphasis on systemic enforcement makes perfect sense strategically because it allows the EEOC to address and remedy workplace discrimination on a large scale.”

The size of cases picked up for investigation was not the only issues that attendees of the hearing took issue with. Lisa Ponder, Vice President and Global Human Resources Director for MWH Constructors questioned the accuracy of pay gap data. She raised the issue that the gap is based not on gender, but rather on years of experience. The ratio of males in the industry from the baby boomer generation greatly outweighs the number of females in that generation. Female engineers from the baby boomer generation make up roughly 5% of the industry compared to about 20% from the millennial generation. Without a proportionate number of males and females from the same generation (same years of experience) Ponder alleges that there is no way to accurately interpret whether a gender pay gap truly exists. She also expressed the concern that this leads to a “false narrative that could discourage women from pursuing a career in the science, technology, engineering, and math fields.”

Camille Olson, a labor and employment attorney who testified on behalf of the US Chamber of Commerce questioned how the new data would even be realistically utilized. “Despite the excessive burden imposed on employers, the EEOC failed to articulate a clear benefit associated with its proposed collection….In addition to the problems inherent in the data that the EEOC proposes to collect, its proposed statistical approach will also be unhelpful in identifying discrimination.” Additionally, she expressed concerns about potential privacy violations in collecting the pay data, citing that in the “hands of the wrong people”, the information from the reports could cause “significant harm to EEO-1 responders and subject employees to potential violation of their privacy”. She said the “EEOC has failed to articulate a clear benefit associated with its proposed collection” and that it would be “unhelpful in identifying discrimination”.

In spite of the aforementioned grievances, not everything discussed at the meeting was a criticism of the agency. Cox did commend the EEOC for the great impact and effort that has been made to eliminate workplace discrimination, spotlighting the guidance on consideration of arrest and convictions in employment.

“The EEOC’s work on the guidance is not only commendable, it is also consistent with the growing national and bipartisan consensus that we need to rethink our criminal reentry systems to ensure that millions of Americans who have a criminal record, but who have paid their debt to society and are qualified for work, are not unjustly denied the opportunity to reintegrate back into society by the misuse of criminal background checks,” Cox said. “To allow the presence of an arrest or conviction record to bar an individual from meaningful employment forever, would deny to millions that most powerful and important American opportunity—a second chance.”

 

Source: http://www.employmentlawdaily.com/index.php/news/congress-asks-is-the-eeoc-doing-a-good-job-or-is-it-time-to-change-the-focus/

 

 

 

Sexual Harassment Attorney

To Call or Not to Call – Why You Need a Sexual Harassment Attorney

Are you afraid to talk to a lawyer?
Do you think you might need a sexual harassment attorney?

Our country is in the midst of turbulent change, particularly regarding social matters. Issues such as racial and gender equality lead the forefront, calling upon those in power (and well, all of us really) to take a stand against civil injustice.

One of the prominent ideals of gender equality (namely Feminism) is the notion that women do not have to silently accept unwanted attention – regardless of whether others perceive it as “positive” or “negative” attention. Be it from men cat calling as she walks down the street, or a boss who promises career advancement in exchange for a romantic relationship, the boundaries of what is acceptable/complimentary/”just locker room talk” are evolving.

Despite the positive changes which are slowly but surely taking place, women still face antiquated expectations and outlandish double standards. Men who have many sexual partners are “experienced” while a woman is a “slut”. We are constantly told to smile more (something you rarely heard said to a man), “give the guy a chance” even if we aren’t attracted to them, and that sexual assault can be expected if we don’t choose our outfits carefully enough.

For a woman experiencing sexual harassment in the workplace, the stakes are raised tenfold. It isn’t just about your physical safety anymore, it’s also about financial security. You are placed in the difficult position of weighing the options – make a complaint and risk retaliation such as termination, or put up with the heinous behavior that you know you do not deserve. This behavior, of course, may rear its ugly head in a variety of different forms. Maybe the guy at the desk next to you constantly makes sexual jokes, though he knows they make you feel uncomfortable. Or perhaps your boss texts you too late at night, talking about how he “wishes you were there with him” (ew, I’m tired and just want to get to sleep). Then there are the more obvious, more worrisome, and unfortunately more frequent examples – the one who tries to get you alone, the one that stands too close to you or follows you whenever you get up to go to the bathroom, or most awful of all, the one that for some reason thinks it’s okay to touch you without your consent.

The implications can be terrifying when you see stories like these in the news everyday (or even due to the news…I’m looking at you, Fox News). Who knows what this person is capable of? On the other hand, if you complain and lose your job, how will you pay rent? Put gas in the car? Feed your family? Many women determine that the financial aspect takes precedence, usually because they feel alone and don’t know what their options are.

But What To Do?

This is the point where an experienced sexual harassment attorney needs to step in on your behalf. Your livelihood and peace of mind are not something to hesitate protecting, and that is what a sexual harassment attorney can help you do. Whether you are still employed or have been terminated, contacting an attorney is the best course of action. Naturally, the thought of reaching out to a sexual harassment attorney can be a stressful experience as well, especially if it’s the first time you’ve had to do so. But rest assured that it is the best way to protect yourself, your job, or possibly others who might be facing the same behavior from the harasser. At many firms (such as our own), the initial contact is completely confidential and without obligation. After gathering the basic information, an attorney will evaluate your situation and invite you in for a free consultation where your options will be discussed. It’s hassle free, and at the very least will give you an idea of where you stand.

Never be afraid to act in your own best interest. You are worth it!

For more information on how to obtain a sexual harassment attorney, see our page on the topic.

Wrongful Termination

Big Payout for Wrongful Termination of HR Director

A huge settlement was recently awarded to Cynthia Begazo for her wrongful termination case. Begazo initiated the case in September of 2015 after she was fired from Passages Malibu Rehab Center. She alleged that the termination was wrongful on the basis of discrimination and retaliation.

Begazo started working for Passages Malibu in March 2015 as their Human Resources Director. She was 53 at the time, and disclosed to her employers that she had been suffering from Leukemia. That same month, she first approached Passages co-founder Pax Prentiss about some concerns she had. She had noticed that some of the staff members such as maintenance, housekeepers, and kitchen workers were not receiving their lunches and breaks. Being in charge of HR, it would have been partially her responsibility to make sure the company was in compliance with state laws regarding lunches, breaks, and the like. Prentiss’ reply however, was disheartening. He allegedly told her, “Don’t worry about it. You have bigger things to worry about.” Around this time, Begazo also mentioned the facility’s compliance issues with training, licensure and contracts, but states that nothing was done to correct the issues.

The following month, the (soon to be) COO Marina Mahoney and Prentiss asked Begazo to terminate three employees – all of whom had medical issues. Begazo protested, telling Mahoney and Prentiss that terminating employees because of medical conditions was illegal. Mahoney replied that, “she would fire anyone that was too slow, could not keep up, [and] who did not fit in with the ‘new Passages’.” This was not the only occasion where Mahoney seemingly targeted employees with medical issues. Begazo alleges that throughout her employment, there were several times where Mahoney told her she did not like it when employees took time off for medical reasons. After it was all said and done, the three employees Mahoney singled out were in fact let go. C.J. Robinson was the first of these three to be terminated in April of 2015. When Begazo asked why she had been fired, Mahoney told her it was because Robinson was “too slow”, “smelled foul”, and “can’t keep up because she [was] too old”. Later that month, Debra Saunderson and Mark Bonelli were terminated, both of whom were over the age of 50. Begazo asked for the reasoning behind these terminations as well. Mahoney’s reasoning for letting Bonelli go was because, “he’s old” and she didn’t think “he’s ever going to keep up.” Again, Begazo warned Mahoney about the legality of terminating employees due to the age. Mahoney replied that she could “do whatever she wanted” because of the at-will presumption.

Not too long after, Kathryn Rivas (Passages Program Director) informed Begazo that she would need to take leave in order to recover from a medical condition. Begazo took this information to Mahoney who replied, “You know what, she’ll never work here. She’ll never work for me.” Despite Begazo’s concern over firing an employee with a medical condition, both Mahoney and Prentiss continued to press her, asking if there was “any way to fire” the employee. While the employee was on leave, Pretniss and Mahoney allegedly harassed Rivas. Begazo warned Prentiss that he should not contact an employee at all while they are on leave, “let alone harass them”. However, Prentiss ignored her recommendations.

In a shocking turn of events, a patient was found dead in his room on April 23rd, 2015. Upon inspection of the scene, Mahoney found that there was a plastic bag and a trash can covering the patient’s head, scratch marks on his face, and blood on the bed of the patient’s roommate. These details led Mahoney to note that although they initially thought the death was a suicide, it could have been a homicide. Begazo asked if all of this information had been given to the appropriate entities (detectives, Department of Health, the Joint Commission, and liability carrier). Mahoney replied, “I don’t want to say anything until there’s a medical report….I don’t want you reporting any of it.” After this, she promptly walked out of the room. Begazo reviewed employee files and discovered that the nurse on duty the night of the death had not received proper training. Mahoney admitted that the facility did not have “any formal or written procedures for intake, detoxing, and monitoring” the patients. Mahoney then ordered Begazo to alter the employee files and falsify information about the events surrounding the patient’s death, which Begazo refused to do. After this, Begazo states that Mahoney stopped talking to her, leaving her excluded from projects and employee meetings.

Around April 30th 2015, Begazo contracted an infection due to her Leukemia. Despite having a fever of 102 degrees, she went to work anyway due to fear of losing her job. Begazo’s doctor then put her off of work for one week in order to give her time to recuperate. Begazo informed the HR department and Mahoney on May 1st 2015 that she needed to take at least a three day absence from work due to the medical problems. She states that upon receiving this news, Mahoney was “visibly upset”.

Similar to what happened to the other employee that went on medical leave, Begazo states that while she was out she was contacted several times by Mahoney regarding work matters. She also required her to reply to all work related emails and telephone calls from staff members.

On May 3rd, Pretntiss and Mahoney met with the HR staff, and informed them that they would be terminating Begazo due to her medical leave of absence. At this time, Prentiss also offered Begazo’s job to HR generalist in Begazo’s department.

On May 6th 2015, Begazo returned to work only to be told that she was being terminated. Interestingly enough, Prentiss commented “You’re no longer a fit, but your skills and experience are excellent.”

Due to the overwhelming evidence of disability discrimination and retaliation (amongst other claims) on the part of Passages Malibu, the court found in favor of Begazo on March 3rd, 2017. The award amount totaled $1.8 million dollars.

 

Sources:

http://patch.com/california/malibu/former-passages-malibu-employee-alleges-improriety-lawsuit-0

http://www.dailynews.com/general-news/20150921/passages-malibu-rehab-center-sued-by-ex-hr-director-with-laundry-list-of-allegations

https://dlbjbjzgnk95t.cloudfront.net/0898000/898594/operativecomplaint.pdf

 

Gender Bias is No Piece of Cake – Part I

Katie Mayes was described as an employee that “worked hard” and “followed the rules” during her 12 year employment at WinCo in Idaho Falls. That is, until she was terminated for allegedly stealing and being dishonest. If you think that sounds like an unlikely conclusion to a spotless performance, disciplinary and attendance record, you’re not alone. On February 3rd, 2017, the appellate court overturned previous judgments against Mayes in the gender discrimination case she filed following her termination.

The situation begins with Mayes being hired on as a Clerk for the company in 1999. In 2006, she was promoted to a PIC (Person in Charge) for the Nighttime Freight Crew. She also served as the store’s Safety Committee Chief. Because the crew she managed worked long hours full of grueling physical labor, Mayes often motivated her employees in the form of stale cakes from the bakery. She states that her original General Manager Mark Wright had given her approval to take cakes from the bakery area to use as motivation and boost morale, so long as she wrote them down in the “in-store use log”, which she always followed protocol for. When Wright left the store in 2007, a new General Manager took over by the name of Dana Steen.

Everything was seemingly okay until about January 2011 when Mayes and other managers were instructed to only take cakes from the “stales cart”. The items on the cart had been deemed unsellable due to freshness though they were still safe to eat, and would be donated to a local food bank or charitable organization. Mayes testified that she was told she no longer had to mark the stale items in the “in-store use log”, as they had already been scanned out of inventory and reported as a “lost product”. It was also around this time that Mayes’ title as Safety Committee Chief was taken from her and given to another employee. When Mayes asked Steen why she had been removed as the chair, she alleges that Steen replied by saying that “a male would be better in that position”. Mayes then reported to Assistant Manager Scott McCartney that she felt she was being discriminated against. She testified that McCartney’s response was for her to “stay away” from Steen, because she didn’t like that a “girl” was in charge of the freight crew. McCartney however later denied recalling such a conversation in his deposition.

From there on out, Mayes contends that she was treated differently from her male peers. Of course, there was the comment about a male being better fit to the safety committee position. Another example Mayes offered was that she was given criticism for sometimes not being able to stay late or having to leave early to care for her children. According to Mayes, another PIC named Andrew Olson was in a similar situation, sometimes having to leave early to care for his daughter, but never received any negative commentary.

The situation reached its peak on July 7th, 2011 when bakery manager Terri Bruun notified Steen that a cake had gone missing from their shelves and was eaten in the employee breakroom. Steen then initiated an investigation and reviewed 6 months of surveillance video in order to find the culprit. What she saw was a freight crew employee, Nick McInelly, taking the cake in question to the breakroom. She also reported seeing Mayes take a cake from the stale cart back in June of that year. Afterwards, Steen turned everything over to their loss prevention investigator, Scott Samuelson. He visited the store later that same day in order to review surveillance footage, in-store use logs, and sales records in to help determine what had happened. Another loss prevention specialist inferred that because management would not be present that night, McInelly might try to take another cake – and he did just that.

The following morning, Samuelson confronted McInelly about the cakes, at which point he said that Mayes had given him permission to take them. Mayes of course stated that she only instructed her crew to take cakes from the stales cart.

Ultimately, both Mayes and McInelly were fired over the matter. At the termination, Mayes was told she was being let go due to “theft” and “dishonesty”. She was also presented with a document banning her from WinCo property for 100 years. Despite McCartney carrying out the termination meeting and preparing the paperwork, he testified that he had no part in making the decision to terminate nor did he know who did.

Mayes attempted to appeal the termination with WinCo’s employee grievance committee but the decision was upheld. She then filed a complaint of discrimination based on gender with the EEOC (Equal Employment Opportunity Commission) and the Idaho Human Rights Commission. She was issued a Right to Sue letter on April 11th, 2012.

Having exhausted her other options, Mayes filed a lawsuit on June 15th 2012, alleging discrimination on the basis of gender, violation of her COBRA rights, and wage issues as the company refused to pay her out for accrued vacation time.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/03/14-35396.pdf

http://www.employmentlawblog.info/2017/02/mayes-v-winco-holdings-no-14-35396-9th-cir-feb-3-2017.shtml

https://www.law360.com/employment/articles/888471/9th-circ-revives-bias-suit-over-store-s-cake-theft-firing

https://casetext.com/case/mayes-v-winco-holdings

Sexual Harassment

Sexual Harassment in Corporate America – Not Just TV Drama

The 1960s probably come to mind when you think of men making aggressive (perhaps appalling) advances towards female co-workers. But the reality is, that “Mad Men” stereotype is not too far from the corporate world today. Even the 2016 election cycle seemed to bring some of this issue to light – i.e. grab them by the what? The Roger Ailes controversy was one of the most widely publicized and closely followed news stories of the year. Over two dozen women came forward to speak out against Ailes’ inappropriate behavior, leading the big wig to resign from Fox News after a 20 year career. The world was shocked when women spoke of sexual harassment and assault from beloved comedian Bill Cosby.

But for many women, they don’t have to watch the news to see harassment culture in action. A report released in June 2016 by the EEOC Select Task Force on the Study of Sexual Harassment in the Workplace revealed some alarming findings. Key findings included:

  • Workplace harassment remains a persistent problem
  • Workplace harassment often goes unreported (3 out of 4 victims never report the harassment)
  • There is a compelling business case for stopping and preventing harassment
  • It starts at the top
  • It’s on us (everyone)

The EEOC also notes that 45% of all complaints filed are based on sex. This is far more than any other type of harassment reported. They have also noted that 83% of all sexual harassment charges were filed by women.

Joann Lublin details the trials and tribulations of female executives in her book, Earning It: Hard Won Lessons from Trailblazing Women at the Top of the Business World. She is also the management-news editor at the Wall Street Journal. Lublin interviewed several successful women for the book and shares their personal stories of sexual harassment and degradation. Many of the anecdotes take place in the 1980s and 1990s, but not all. The broad span of years in which the incidents take place is rather disheartening. Unfortunately, it’s evident from many sources that sexual harassment still prevails today as well.

Most recently, a lawsuit was filed against insurance company AIG by their former employee Marlee Valenti. The plaintiff began working for AIG in 2009, and was promoted within a year to Senior Underwriter. She won multiple awards for her performance. The issues began in 2012 when she was transferred to the Public Management Liability Commercial Lines Division. The division was well known within the company as the “Boy’s Club”, as only an estimated 10% of its employees were female. Valenti states that in the division, she and other female employees endured incredulous acts of sexual harassment, including male executives hiding under women’s desks in order to look up their skirts. Valenti also stated that she had been groped and licked by male co-workers, among other things. Though the behavior was grotesque, the plaintiff didn’t feel there was anyone she could make a complaint to. Her direct supervisor Michael Donnelly was, in her words, “a willing participant” in the problematic behavior. Eventually, Valenti states that Donnelly began showing “clear disdain” towards her. This escalated in September of 2013 when she received a formal written performance warning. Along with the write-up, Valenti’s biggest account was taken away from her and she claims that she was denied opportunities, as all of her supervisors began ignoring her. In December 2013, the problems came to a head when Valenti discovered her co-workers had been “speaking negatively” about her to others in the industry. She had enough. This prompted Valenti to submit a 150 page rebuttal to management, complete with “evidence” of the harassment she had endured. The following month, Valenti was fired. The company allegedly completed “a perfunctory investigation” but found no wrongdoing.

It is only a small percentage of stories such as these that gain notoriety. The only way that workplace harassment will be eradicated is if each of us take action. That can be in the form of making complaints on your own behalf, or standing up for co-workers. When necessary, it can also take the form of a lawsuit. If you feel that you have been sexually harassed in the workplace, call our office for a free consultation. Together, we can help end this epidemic, one case at a time.

 

Sources:

http://nypost.com/2017/01/24/ex-aig-worker-sues-over-never-ending-stream-of-harassment/

http://www.nydailynews.com/new-york/aig-worker-sues-sexual-harassment-article-1.2953841

http://dealbreaker.com/2017/01/aig-sexual-harassment-lawsuit/

https://www.theatlantic.com/business/archive/2016/10/when-women-have-power-they-can-do-something-about-sexual-harassment/505316/

https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_Toc453686298